14-2829-cv L - Center for Constitutional Rights et al... · NEW YORK CITY POLICE OFFICER CHRISTOPHER MORAN, ... The New York City Collective Bargaining Law Did Not Provide The Police

14-2829-cv(L), 14-2834-cv(CON), 14-2848-cv(CON)

United States Court of Appeals

for the

Second Circuit

DETECTIVES’ ENDOWMENT ASSOCIATION, INC., LIEUTENANTS

BENEVOLENT ASSOCIATION OF THE CITY OF NEW YORK, INC.,

NYPD CAPTAINS ENDOWMENT ASSOCIATION, PATROLMEN’S

BENEVOLENT ASSOCIATION OF THE CITY OF NEW YORK, INC.,

SERGEANTS BENEVOLENT ASSOCIATION,

Appellants-Putative Intervenors,

– v. –

(For Continuation of Caption See Inside Cover)

–––––––––––––––––––––––––––––– ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

BRIEF OF AMICI CURIAE GRAND COUNCIL OF

GUARDIANS, INC., NATIONAL LATINO OFFICERS’

ASSOCIATION AND 100 BLACKS IN LAW ENFORCEMENT

WHO CARE IN SUPPORT OF APPELLEES

GLADSTEIN, REIF & MEGINNISS LLP

Attorneys for Amici Curiae

817 Broadway, 6th Floor

New York, New York 10003

(212) 228-7727

Case: 14-2829 Document: 163 Page: 1 09/29/2014 1330968 40

DAVID FLOYD, LALIT CLARKSON, DEON DENNIS, DAVID OURLICHT,

JAENEAN LIGON, individually and on behalf of her minor son, J.G., FAWN

BRACY, individually and on behalf of her minor son, W.B., A.O., by his parent

DINAH ADAMES, JACQUELINE YATES, LETITIA LEDAN, ROSHEA

JOHNSON, KIERON JOHNSON, JOVAN JEFFERSON, ABDULLAH

TURNER, FERNANDO MORONTA, CHARLES BRADLEY,

individually and on behalf of a class of all others similarly situated,

Plaintiffs-Appellees,

– v. –

THE CITY OF NEW YORK, COMMISSIONER WILLIAM J. BRATTON,*

New York City Police, in his official capacity and individually, MAYOR BILL

DE BLASIO,* in his official capacity and individually, NEW YORK CITY

POLICE OFFICER RODRIGUEZ, in his official and individual capacity, NEW

YORK CITY POLICE OFFICER GOODMAN, in his official and individual

capacity, POLICE OFFICER JANE DOE, New York City, in her official and

individual capacity, NEW YORK CITY POLICE OFFICER MICHAEL COUSIN

HAYES, Shield #3487, in his individual capacity, NEW YORK CITY POLICE

OFFICER ANGELICA SALMERON, Shield #7116, in her individual capacity,

LUIS PICHARDO, Shield #00794, in his individual capacity, JOHN DOES,

New York City, #1 through #11, in their official and individual capacity,

NEW YORK CITY POLICE SERGEANT JAMES KELLY, Shield #92145,

in his individual capacity, NEW YORK CITY POLICE OFFICER CORMAC

JOYCE, Shield #31274, in his individual capacity, NEW YORK POLICE

OFFICER ERIC HERNANDEZ, Shield #15957, in his individual capacity,

NEW YORK CITY POLICE OFFICER CHRISTOPHER MORAN,

in his individual capacity,

Defendants-Appellees.

––––––––––––––––––––––––––––––

*Pursuant to Federal Rules of Appellate Procedure 43(c)(2), New York City

Police Commissioner William J. Bratton and New York City Mayor Bill de

Blasio are automatically substituted for the former Commissioner

and former Mayor in this case.


CORPORATE DISCLOSURE STATEMENT OF 100 BLACKS IN LAW ENFORCEMENT WHO CARE

Eric Josey, under penalty of perjury, states as follows:

1. I am a Co-Founder and the Director ofLegal Affairs of 100 Blacks in

Law Enforcement Who Care ("l 00 Blacks").

2. I 00 Blacks has no parent corporation, and no publicly held corporation

owns 10% or more of its stock.


CORPORATE DISCLOSURE STATEMENT OF NATIONAL LATINO OFFICERS'. A.SSO.CIA TION .

·~· I i' ;•

Anthony_Miranda, under penalty of perjury, states as follows:

1. I am the Executive Chairman of the National Latino Officers'

Association ("NLOA,,).

2. The NLOA has no parent corporation, and no publicly held corporation

owns 10% or more of its stock.

~~ Anthon Miranda

11


CORPORATE DISCLOSURE STATEMENT OF GRAND COUNCIL OF GUARDIANS

Charles Billups, under penalty of perjury, states as follows :

CJ1t-l 1~. 1 )l~ 'Q(j Y) . • • 1. I am the"Pre 1 mofthe Grand Council of Guardians ("Grand

Council") .

2. The Grand Council has no parent corporation, and no publicly held

corporation owns 10% or more of its stock.

n(· /./, ~~, \/ '·~ x~ t ct~t \,c

Charles Billups t

U'\A11t,,pel2-~(..Y''\

111


TABLE OF CONTENTS

Page CORPORATE DISCLOSURE STATEMENTS ........................................................ i TABLE OF AUTHORITIES .................................................................................... vi STATEMENT OF INTEREST PURSUANT TO FRAP 29(c)(4) ............................ 1 ARGUMENT ............................................................................................................. 3

THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN FINDING THAT APPELLANTS FAIL TO POSSESS A DIRECT, SUBSTANTIAL AND LEGALLY PROTECTABLE INTEREST IN A SUBJECT OF THE REMAINING LITIGATION IN FLOYD OR LIGON ............................................................................................................. 3 A. The New York City Collective Bargaining Law Did Not Provide

The Police Unions With A Sufficient Interest To Intervene As Of Right In The Merits Appeal Or The Remaining Remedial Proceedings ............................................................................................... 5

B. The Unions Lack A Sufficient Interest Arising From The Asserted

Interference With The City’s Running Of The NYPD And Lack Standing To Assert Such An Interest ...................................................... 14

C. The Reputational Interests The Police Unions Assert On Behalf

Of Their Members Do Not Create A Right To Intervene Pursuant To Rule 24(a)(2) ...................................................................................... 17

1. The Unions Lack Associational Standing To Represent Their

Respective Memberships With Respect To Either Of The Reputational Interests Alleged .......................................................... 17

2. Members Of The Unions Lack A Direct, Substantial And

Legally Protectable Interest Arising From The Supposed Reputational Injury ........................................................................... 19

iv


D. The Putative Intervenors Failed To Show A Sufficient Interest Based Upon Their Safety Rationale ........................................................ 23

E. The Unions May Not Intervene To Challenge The Liability

Findings Of The District Court ............................................................... 27 CONCLUSION ........................................................................................................ 29

v


TABLE OF AUTHORITIES

Page CASES: Abramson v. Pataki, 278 F.3d 93 (2d Cir. 2002) ..................................................... 22 Anyanwu v. CBS, Inc., 887 F. Supp. 690 (S.D.N.Y. 1995) ..................................... 22 Bridgeport Guardians, Inc. v. Delmonte, 602 F.3d 469 (2d Cir. 2010) .................. 14 Diaz v. NBC Universal, Inc., 536 F. Supp. 2d 337 (S.D.N.Y. 2008) ...................... 22 District of Columbia v. Little, 178 F.3d 13 (D.C. Cir. 1949), aff’d,

339 U.S. 1 (1950) ................................................................................................ 25 Donaldson v. United States, 400 U.S. 517 (1971) ............................................... 5, 15 Floyd v. City of New York, No. 13-3088 (2d Cir.) ................................................. 1, 4 Floyd v. City of New York, No. 08 Civ. 1034 (AT) (S.D.N.Y.) .......................passim Floyd v. City of New York, 2014 WL 3765729 (S.D.N.Y.

July 30, 2014).................................................................................... 1 and nn. 2, 4 Gilmer v. Spitzer, 538 Fed. Appx. 45 (2d Cir. 2013) .............................................. 22 Green v. County School Board, 391 U.S. 430 (1968) ............................................. 11 Griffin v. County School Board of Prince Edward County, 377 U.S. 218

(1964) .................................................................................................................. 11 Hecht Co. v. Bowles, 321 U.S. 321 (1944) .............................................................. 11 Hofmann v. Sender, 716 F.3d 282 (2d Cir. 2013) .................................................... 20 Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) ...................................................... 16

vi


In re Penn Cent. Commercial Paper Litigation, 62 F.R.D. 341 (S.D.N.Y. 1974), aff’d w/o op., 515 F.2d 505 (2d Cir. 1975) ......................................................... 16

Krist v. Kolombus Rest. Inc., 688 F.3d 89 (2d Cir. 2012) ....................................... 20 Ligon v. City of New York, No. 13-3123 (2d Cir.) ................................................. 1, 4 Ligon v. City of New York, No. 12 Civ. 2274 (AT) (S.D.N.Y.) .......................passim Monroe v. Bd. of Commissioners, 391 U.S. 450 (1968) .......................................... 11 New York News, Inc. v. Kheel, 972 F.2d 482 (2d Cir. 1992) ..................................... 4 North Carolina State Bd. of Education v. Swann, 402 U.S. 43 (1971) ................... 11 Swann v. Charlotte-Mecklenberg Board of Education, 402 U.S. 1 (1971) ............. 11 Terry v. Ohio, 392 U.S. 1 (1968) ......................................................... 25 and n. 7, 26 United States v. 936.71 Acres of Land, 418 F.2d 551 (5th Cir. 1969)...................... 15 United States v. Pitney Bowes, Inc., 25 F.3d 66 (2d Cir. 1994) ................................ 4 United States v. State of New York, 820 F.2d 554 (2d Cir. 1987) ........................... 14 United States Postal Service v. Brennan, 579 F.2d 188 (2d Cir. 1978) .... 3, 5, 14, 20 Warth v. Seldin, 422 U.S. 490 (1975) ................................................................ 16, 18 Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982) .............................. 10 and n. 5 CONSTITUTIONAL PROVISIONS: U.S. Constitution: Article VI, Clause 2 ............................................................. 10 and n. 5, 12, 13 Equal Protection Clause ..........................................................................passim Fourth Amendment .......................................................................... 3, 5, 12, 20

vii


STATUTES: New York City Collective Bargaining Law,

N.Y.C. Admin. Code § 12-301 et seq. ................................................................. 4 § 12-307 ................................................................ 9, 10, 13 § 12-307(a) ........................................................................ 6 § 12-307(b) ............................................................... 6, 7, 8 RULES: Federal Rules of Appellate Procedure: Rule 29 ............................................................................................................. 1 Rule 29(c)(4) .................................................................................................... 1 Federal Rules of Civil Procedure: Rule 17(a) ...................................................................................................... 16 Rule 23(a)(2) ........................................................................................... 18 n. 6 Rule 24(a)(2) ...........................................................................................passim Rule 52(a)(6) .................................................................................................. 20 MISCELLANEOUS: Tom Hays, “City Goes Ahead With Cameras for Police Without Stop-and-

Frisk Court Remedy,” New York Law Journal, September 8, 2014 ......... 8, 27 Kirk Johnson, “Today’s Police Put On a Gun And a Camera,” N.Y. Times,

September 28, 2014 ....................................................................................... 27

viii


STATEMENT OF INTEREST PURSUANT TO FRAP 29(c)(4)

The Grand Council of Guardians, Inc., the National Latino Officers’

Association and 100 Blacks In Law Enforcement Who Care (collectively “Amici”)

submit this brief pursuant to FRAP 291 in opposition to the appeals by the

Patrolmen’s Benevolent Association, Sergeants Benevolent Association,

Detectives’ Endowment Association, Inc., Lieutenants Benevolent Association of

the City of New York, Inc. and NYPD Captains Endowment Association, Inc.

(collectively “Appellants,” “Police Unions” or “Unions”) from the July 30, 2014

Order and Opinion of the District Court denying their motions to intervene in

appeals before this Court in Floyd v. City of New York, No. 13-3088, and Ligon v.

City of New York, No. 13-3123, and in remedial proceedings before the District

Court in Floyd v. City of New York, No. 08 Civ. 1034 (AT) (S.D.N.Y.), and Ligon

v. City of New York, No. 12 Civ. 2274 (AT) (S.D.N.Y.). 2 See Floyd v. City of New

York, 2014 WL 3765729 (S.D.N.Y. July 30, 2014). All parties to the intervention-

1 No counsel for any party authored this brief in whole or part. No party or party’s counsel contributed money that was intended to fund preparing or submitting the brief. No person other than counsel for Amici contributed money which was intended to fund preparation or submission of this brief. 2 The Sergeants Benevolent Association moved to intervene only in the Ligon appellate and trial court proceedings. The other Police Unions sought intervention in both Floyd and Ligon. See 2014 WL 3765729, at n. 1.


related appeals consolidated herein consented to the filing of a brief by Amici. The

instant brief is being filed on or before September 29, 2014.3

The Grand Council of Guardians, incorporated in 1974, is a not-for-

profit umbrella organization for numerous organizations composed of African-

Americans in the law enforcement field, including groups composed of police,

corrections, parole or probation personnel. One of the Grand Council’s constituent

organizations, the NYPD Guardians, has more than 500 members who are current

or retired New York City police officers. Other constituent organizations include

groups composed of New York State police personnel or Nassau County police

personnel. The National Latino Officers’ Association is a national fraternal and

advocacy membership organization composed of more than 6,000 uniform and

civilian employees of city, state and federal law enforcement agencies. A majority

of its members are current or former employees of the NYPD. 100 Blacks In Law

Enforcement Who Care, founded in 1995, is composed of several hundred African

Americans involved in law enforcement. A majority of its members are current or

retired NYPD officers.

Each of the Amici has long been concerned about the relationship

between law enforcement agencies and minority communities, as well as the

3 All parties except the appellants in Nos. 14-2829-cv and 14-2834-cv consented unconditionally to such filing. The latter consented on the condition that Amici file their brief on or before September 29, 2014.

2


treatment of minority personnel in law enforcement agencies. Amici believe it is

important to make known that the arguments expressed on these appeals by the

leaderships of the Police Unions do not represent the views of many rank-and-file

members of those unions, particularly minority union members. In particular, the

conclusory “safety” rationale advanced by Appellants as a justification for

intervention has it completely backwards with respect to both the public and

individual police officers. It is NYPD adherence to the commands of the Fourth

Amendment and the Equal Protection Clause when interacting with the public, not

systemic and widespread violations of those constitutional guarantees, which will

best advance both public and police safety.

ARGUMENT

THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN FINDING THAT APPELLANTS FAIL TO POSSESS A DIRECT, SUBSTANTIAL AND LEGALLY PROTECTABLE INTEREST IN A SUBJECT OF THE REMAINING LITIGATION IN FLOYD OR LIGON. .

The Police Unions sought intervention as a right in the remaining

appellate and trial court proceedings in Floyd and in Ligon pursuant to Fed. R. Civ.

P. 24(a)(2). Accordingly, they were obliged to show, inter alia, they possess an

interest relating to property or a transaction that is the subject of those proceedings.

The burden of proof on intervention under Rule 24(a)(2) lies with the movant.

United States Postal Service v. Brennan, 579 F.2d 188, 191 (2d Cir. 1978). The

3


District Court denied the Unions’ motions on the grounds that their motions were

untimely, the Unions failed to demonstrate a direct, substantial and legally

protectable interest relating to property or a transaction that is a subject of the

appeals in Nos. 13-3088 or 13-3123 or of the outstanding remedial proceedings in

the court below, and the Unions lacked standing to intervene.

Because of the variety of circumstances presented on motions to

intervene and the close proximity of a district court to a case’s nuances, such a

court has a better sense of a case than an appellate court. For that reason, a denial

of an application to intervene as of right is reviewable only for an abuse of

discretion. E.g., United States v. Pitney Bowes, Inc., 25 F.3d 66, 69 (2d Cir. 1994);

New York News, Inc. v. Kheel, 972 F.2d 482, 485 (2d Cir. 1992). The District

Court did not abuse its discretion in denying the applications to intervene. While

Amici believe the District Court’s denial of intervention under Rule 24(a)(2) was

correct for each of the separate reasons relied upon by that Court, Amici focus

principally on the following point: The interests on which Appellants would rely,

to wit, (a) the alleged right of the Unions to bargain over the terms of the District

Court’s remedial orders said to arise from the New York City Collective

Bargaining Law (“CBL”), N.Y.C. Admin. Code § 12-301 et seq., (b) the interest in

avoiding undue interference with the City’s running of the NYPD, (c) the

reputational injury ostensibly suffered by the individual members of the Unions

4


either as a consequence of certain non-party Union members being found not

credible as witnesses or as a consequence of the Court’s finding that the NYPD

was responsible for more than 200,000 unconstitutional stop-and-frisks, and (d) the

threat to public and/or police safety purportedly arising from the NYPD having to

comply with the Fourth Amendment and the Equal Protection Clause do not

constitute interests relating to property or a transaction that was a subject of the

Floyd or Ligon actions within the meaning of Rule 24(a)(2).4

A. The New York City Collective Bargaining Law Did Not Provide The Police Unions With A Sufficient Interest To Intervene As Of Right In The Merits Appeal Or The Remaining Remedial Proceedings. .

To obtain intervention under Rule 24(a)(2), an applicant must

demonstrate that, inter alia, (s)he/it has a “direct, substantial, and legally

protectable” interest relating to property or a transaction that is a subject of the

action. Brennan, 260 F.3d at 129; accord: Donaldson v. United States, 400 U.S.

517, 530-531 (1971). The Unions’ assertion that New York City had a statutory

4 In Ligon, the Unions failed to address the alleged interests at stake in that case which might justify intervention as of right. Because “the Unions d[id] not see fit to address these issues,” the District Court denied their motions without further ado on the reasonable basis that the Court was not obliged to do the Unions’ work for them. 2014 WL 3765729, at * 9. Clearly, the Court did not abuse its discretion in denying intervention in Ligon on this basis. Accordingly, in the remainder of this brief, Amici will address only Appellants’ attempted intervention in Floyd.

5


duty to bargain with them over the activities which are the subjects of the District

Court’s remedial orders did not satisfy that criterion.

In order for the Police Unions to possess a right to bargain with New

York City over a particular subject, there must be a concomitant duty on the part of

the City to bargain with said unions over that topic. The scope of the City’s duty

to bargain with the Unions is very narrow, as a consequence of the broad

exemptions from such a duty expressly set forth in the CBL. Admin. Code § 12-

307(a) states that any duty of New York City to bargain is “[s]ubject to provisions

of subdivision b of this section….” Subdivision b provides:

b. It is the right of the city, or any other public employer, acting through its agencies, to determine the standards of services to be offered by its agencies; determine the standards of selection for employment; direct its employees; take disciplinary action; relieve its employees from duty because of lack of work or for other legitimate reasons; maintain the efficiency of governmental operations; determine the methods, means and personnel by which government operations are to be conducted; determine the content of job classifications; take all necessary actions to carry out its mission in emergencies; and exercise complete control and discretion over its organization and the technology of performing its work. Decisions of the city or any other public employer on those matters are not within the scope of collective bargaining...

(Emphasis added). The only caveat is that New York City would be obliged to

bargain over the “practical impact” that a unilateral municipal decision on the

foregoing matters would have on terms and conditions of employment, if any:

6


[N]ot withstanding the above, questions concerning the practical impact that decisions on the above matters have on terms and conditions of employment, including, but not limited to, questions of workload, staffing and employee safety, are within the scope of collective bargaining.

(Id).

After finding the City liable for violating the Fourth and Fourteenth

Amendment rights of the plaintiff class in Floyd, the District Court ordered the

City and plaintiffs, together with a monitor appointed by the Court, to submit to the

Court proposed changes to NYPD policies, training, documentation, supervisory

monitoring and disciplinary systems for stop-and-frisks and racial profiling. The

Remedies Order also requires that the City undertake a one-year pilot project for

body-worn cameras on officers in five NYPD precincts, once the monitor develops

project guidelines and procedures. The Court further directed the City and

plaintiffs to engage in a joint remedial process under the guidance of a court-

appointed facilitator to develop supplemental reforms incorporating input from a

variety of sources, including NYPD personnel and representatives of police

organizations.

The remedial activities covered by the Court’s orders thus relate

directly to or involve the standards of services to be offered by the NYPD, the

efficiency of NYPD operations, the methods, means and personnel by which

NYPD operations are to be conducted and/or the organization of NYC police work

7


and the technology of the performance of that work. Clearly none of the remedial

activities called for by the Court would have been subject to mandatory collective

bargaining under the terms of § 12-307(b) even had the NYPD sought to undertake

them without the compulsion of a court order. In this regard, it has been reported

that on September 4, 2014, the NYPD announced it had begun a pilot program to

test 60 cameras worn by officers in five precincts. Police Commissioner William

Bratton was reported to have made the point that the cameras “would soon become

as commonplace as police radios and bulletproof vests.” In a joint statement

issued with Public Advocate Letitia James, Mayor Bill de Blasio stated: “This

pilot program will provide transparency, accountability and protection for both the

police officers and those they serve, while reducing financial losses for the city.”

Commissioner Bratton was quoted as saying that the wearing of cameras by police

officers “is the next wave. It is going to be an essential part of what an officer

wants to wear on patrol.” PBA President Patrick Lynch was also quoted regarding

the pilot program. See Tom Hays, “City Goes Ahead With Cameras for Police

Without Stop-and-Frisk Court Remedy,” New York Law Journal, September 8,

2014, p. 2. As far as Amici are aware, as of the filing of this brief, neither the PBA

nor any of the other Unions has filed an improper practice charge with the New

York City Office of Collective Bargaining (“OCB”) alleging the City’s unilateral

8


implementation of this program, which was not implemented pursuant to any court

order, violated a duty to bargain collectively under § 12-307.

As Plaintiffs-Appellees have also pointed out, in the period 2009-

2013, the City implemented a number of changes to the stop-and-frisk procedures

of the NYPD, including changes which affected the duties of police officers in

respect to the conduct of stop-and-frisks. There is no record evidence that any of

these changes was bargained for with any of the Unions or that they were

compelled by a court order. Yet there is also no record evidence that any of these

changes was challenged before the OCB by any of the Unions as an improper

practice violative of the duty to bargain set forth in § 12-307. The plain language

of § 12-307 and the Unions’ failures in the real world even to file challenges to the

foregoing activities of the NYPD demonstrate that the activities ordered by the

Court as remedial measures in Floyd would be exempt from any duty to bargain

even if undertaken in the absence of the orders in Floyd.

Beyond the foregoing hole in Appellants’ theory lie even more

fundamental flaws. The Unions proffer nothing from the language or legislative

history of § 12-307 nor from any case law to show that in enacting that provision

the New York City Council intended to impose limits on the remedies which

federal courts might impose for constitutional violations committed by the NYPD

or other NYC agencies. In short, there is no evidence that the City Council

9


intended to make a statutory duty to bargain a precondition to any federal court’s

exercise of its equitable remedial authority over the City. In Weinberger v.

Romero-Barcelo, 456 U.S. 305, 313 (1982), after noting the established breadth of

a federal court’s remedial discretion, the Supreme Court stated: “Of course,

Congress may intervene and guide or control the exercise of the courts’ discretion,

but we do not lightly assume that Congress has intended to depart from established

principles.” A fortiori this Court should not lightly assume that the City Council

intended to depart from these established remedial principles, particularly given

that the CBL makes no reference whatsoever to judicial remedies for constitutional

violations committed by the City.

Even assuming arguendo that (a) § 12-307 did purport to impose a

duty on the City to bargain over the sorts of activities the NYPD has been ordered

to undertake and (b) the City Council intended performance of such a duty to

bargain to limit the District Court’s exercise of its remedial authority over the City,

consistent with the Supremacy Clause, Art. VI, Cl. 2 of the U.S. Constitution,5

such assumptions would not operate to create a direct, substantial and legally

protectable interest on the part of the Unions. It is well established that once a

5 “This Constitution and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” (Emphasis added).

10


federal court or jury has found that governmental conduct violates the U.S.

Constitution, the Court has broad equitable discretion to fashion a decree to

remedy the constitutional violation(s). See, e.g., Swann v. Charlotte-Mecklenberg

Board of Education, 402 U.S. 1, 15 (1971); Hecht Co. v. Bowles, 321 U.S. 321,

329-330 (1944). Such broad discretion is not limited by any state law, much less

any local ordinance, which would interfere with or obstruct a federal court’s

provision of redress otherwise thought to be appropriate. To illustrate this point,

we need only reference the Supreme Court’s consistent response when state laws

were invoked to obstruct the fashioning of federal remedies for the redress of

public school segregation found violative of the Equal Protection Clause. See

Griffin v. County School Board of Prince Edward County, 377 U.S. 218 (1964)

(federal court’s authority to remedy public school segregation includes discretion

to override Virginia statute mandating closure of schools whenever black and

white children enrolled therein); Monroe v. Bd. of Commissioners, 391 U.S. 450

(1968) (Tennessee pupil placement law continuing previously segregated pupil

assignments absent school board approval of transfer requests could not limit

federal court’s discretion to fashion remedy for school segregation); Green v.

County School Board, 391 U.S. 430 (1968) (Virginia “freedom of choice” pupil

placement statute could not limit authority of district court to fashion plan

remedying state-mandated public school segregation); North Carolina State Bd. of

11


Education v. Swann, 402 U.S. 43 (1971) (North Carolina statute prohibiting busing

of public school children on basis of race could not be invoked to limit federal

court’s authority to remedy unconstitutionally segregated schools).

The key to the outcome in each of the foregoing cases was the breadth

of a federal court’s discretion to fashion a remedy which would bring to an end a

practice found violative of the Equal Protection Clause and the supremacy of that

judicial discretion pursuant to Art. VI, Cl. 2 of the U.S. Constitution over any state

law which purports to bar relief the court believes is otherwise warranted. Because

each court was exercising discretion to fashion a remedy for a federal

constitutional violation and such authority was supreme over any state law

purportedly limiting such authority, segregationist parents of white school children

could not have claimed they possessed a legally protectable interest arising from

such a state law.

Similarly, once the District Court here found in an indisputably

adversary proceeding that the stop-and-frisk policies and practices of the NYPD

violated the Fourth Amendment and the Equal Protection Clause, it had broad

equitable discretion to award the relief it ordered. This would have been so even

had the CBL purported to bar relief the Court ordered on the basis that actions

mandated by the Court had not been bargained for. As the District Court had

ample authority to enter the orders it did notwithstanding an assumed applicability

12


of § 12-307, the City’s ordinance did not create a substantial and legally

protectable interest on the part of any Union, even assuming for the sake of

argument that bargaining over the activities which are the subjects of the Remedial

Order would have been required had those activities been undertaken by the NYPD

without compulsion of a federal court order. If the state laws referenced above

could not have created a legally protectable interest on the part of parents of white

school children to oppose desegregation remedies being imposed by federal courts,

a fortiori the local ordinance invoked here does not suffice to create a legally

protectable interest in the face of the Supremacy Clause and the District Court’s

broad remedial discretion. To put it succinctly, an interest is not substantial and

legally protectable where, as here, that interest is subject to a federal court’s

virtually boundless remedial discretion.

It is telling that in the more than one year since entry of the Remedial

Order, it appears that none of the Unions filed an improper practice charge with the

OCB alleging that NYC’s failure to bargain over a matter which was a subject of

the Remedial Order constituted an improper practice violative of § 12-307. If their

§ 12-307 argument here had merit, one would reasonably expect the Unions to

have sought redress against the City in the administrative forum which has

jurisdiction to enforce that provision, particularly after this Court stayed

proceedings below on October 31, 2013.

13


B. The Unions Lack A Sufficient Interest Arising From The Asserted Interference With The City’s Running Of The NYPD And Lack Standing To Assert Such An Interest. .

The PBA quotes Bridgeport Guardians, Inc. v. Delmonte, 602 F.3d

469, 476 (2d Cir. 2010), in support of its suggestion that the District Court’s

remedial orders constitute an undue interference with New York City’s running of

its police department. The PBA appears to contend that such an undue interference

would create an interest on the part of the PBA or its members sufficient to allow

the PBA to intervene as of right. This is incorrect both as a matter of Rule 24(a)(2)

interpretation and as a matter of standing.

Given the scope and duration of the NYPD’s constitutional violations

relating to stop-and-frisk and its prolonged and vigorous defense of its policies and

practices which caused those violations, the remedies ordered by the District Court

do not come close to constituting an undue interference with the City’s operation

of the NYPD. Moreover, even assuming arguendo to the contrary, the Police

Unions would not be entitled to intervene as of right on the basis of such an

interference. Rule 24(a)(2) demands that an interest claimed by an applicant be a

“direct” interest. Brennan, 260 F.3d at 129; United States v. State of New York,

820 F.2d 554, 558 (2d Cir. 1987). An undue interference with the City’s running

of the NYPD would not create a direct interest on the part of the PBA or its

members justifying intervention as of right.

14


That a person might be adversely affected by the outcome of an action

in the “but-for” sense does not suffice to create an interest belonging to that person

for purposes of Rule 24(a)(2). This is demonstrated by Donaldson. In that case, a

taxpayer sought to intervene in a proceeding to enforce IRS summonses directed to

third parties. The taxpayer asserted intervention under Rule 24(a)(2) was

warranted because business records produced by the third parties in response to the

summonses would adversely affect his tax liability. Observing that the taxpayer

had no proprietary interest in the records, which were not the work product of his

attorney or accountant and enjoyed no attorney-client or other privilege assertable

by the taxpayer, 400 U.S. at 530, the Supreme Court held he was not entitled to

intervene. His “only interest” lay in the fact that the records presumably contained

details of payments to the taxpayer which possessed significance for purposes of

his income tax liability. Id. at 530-531. But this adverse consequence “[was] not

enough and [was] not of sufficient magnitude” to warrant his intervention. Id. at

531.

In order to assert an interest which might qualify as a predicate for

intervention under Rule 24(a)(2), an applicant must demonstrate that, inter alia, the

interest being asserted belongs to the applicant and not just to a third party. United

States v. 936.71 Acres of Land, 418 F.2d 551, 556 (5th Cir. 1969) (Wisdom, J.)

(applicant may intervene only if it is real party in interest within meaning of Fed.

15


R. Civ. P. 17(a)); and see In re Penn Cent. Commercial Paper Litigation, 62

F.R.D. 341, 346 (S.D.N.Y. 1974) (to satisfy Rule 24(a)(2), interest asserted “must

be based on a right which belongs to the proposed intervenor rather than to an

existing party to the suit”), aff’d w/o op., 515 F.2d 505 (2d Cir. 1975). To the

extent there exists a “right” to avoid undue interference with New York City’s

running of its police department, such a “right” would belong to the City not to a

Police Union or its members. Moreover, this is a particularly unsuitable case in

which to permit a Union or its members to assert such an interest given that the

City itself, already a party to this action, is intentionally refusing to assert such

municipal interest.

As a matter of standing, it is well established that an entity or

individual must ordinarily assert his own legal rights and interests, not simply

those of a third party. Warth v. Seldin, 422 U.S. 490, 499 (1975) (citing

authorities). The Unions say this rule should not govern here, that they should be

permitted to assert New York City’s interest in avoiding undue interference with

its operation of the NYPD because the City has chosen not to assert that claimed

interest. Appellants have it backwards: that the City has deliberately chosen not to

assert an interest that belongs to it alone is precisely the reason why the Unions

must establish standing in their own right. See Hollingsworth v. Perry, 133 S. Ct.

2652 (2013) (where governmental defendants did not seek to appeal adverse

16


judgment, private intervenors had to demonstrate their own standing in order to

prosecute appeal).

C. The Reputational Interests The Police Unions Assert On Behalf Of Their Members Do Not Create A Right To Intervene Pursuant To Rule 24(a)(2). .

The Police Unions assert that their members possess reputational

interests which would allow those members to intervene in Floyd as of right and

that they may properly assert those interests on behalf of their members. They

argue that the few police personnel whose testimony was proffered at trial who

were identified by the trial court as not credible have suffered an injury entitling

the Unions to intervene on their behalf. They also contend that the Court’s finding

that the NYPD had conducted thousands of unconstitutional stop-and-frisks sullied

the reputation of every individual police officer and thus entitled each Union to

intervene on behalf of all of its members. Neither of these assertions can withstand

analysis.

1. The Unions Lack Associational Standing To Represent Their Respective Memberships With Respect To Either Of The Reputational Interests Alleged. .

In order to represent its members, an association must seek redress for

injuries that are “common to the entire membership” of that association and that

17


are “shared by all [members] in equal degree.” Warth, 422 U.S. at 515.6 Such is

not the case here. The Unions do not and cannot assert that testimony by all of

their respective members was proffered at the Floyd trial and that all such

testimony was found incredible. It is undisputed that testimony of only a few

members of any of the Unions were found incredible. Thus the reputational injury

which could result from a determination that the testimony of a few identified

witnesses was not credible could not be “common to the entire membership” of

any of the Unions nor could it be shared by the entire membership “in equal

degree.” Similarly, the Unions do not allege and the record does not show that all

of their members conducted stop-and-frisks, much less that all of them conducted

stop-and-frisks which the District Court found were conducted unlawfully.

Consequently the injury said to result from the finding of unconstitutional stop-

and-frisks was not “common to the entire membership” of a Union nor was it

shared by a Union’s entire membership “in equal degree.”

By way of example only, we note that none of the many NYPD

officers who are members of the Amici organizations was found by the District

Court to be an incredible witness or to have conducted an unconstitutional stop-

and-frisk. Thus the membership that each Union seeks to represent is

6 This rule appears to be derived from Fed. R. Civ. P. 23(a)(2) (named plaintiff may not represent class except as to issue common to all members of that class).

18


overinclusive as to both categories of reputational injury alleged. This

circumstance precludes any Union’s assertion of an interest premised on alleged

reputational injury to all individual members of that Union.

2. Members Of The Unions Lack A Direct, Substantial And Legally Protectable Interest Arising From The Supposed Reputational Injury. .

The allegation that the reputational injury said to arise from a finding

that proffered testimony was not credible creates an interest in an individual who

gave such testimony sufficient to warrant his/her intervention as of right pursuant

to Rule 24(a)(2) is truly breathtaking. The logic of the Police Unions’ submission

knows no bounds. Under their view, every person who testifies in every civil trial

or hearing whose testimony is found not credible would have a right to intervene in

the action after such a finding was made. In the numerous cases in which a trier-

of-fact is confronted with conflicting testimony, determinations as to witness

credibility are frequently required. Under Appellants’ theory, regardless who is

found incredible when testimony conflicts, such person(s) will be able to intervene

so as to take an appeal challenging the finding of incredibility.

Rule 24(a)(2) does not allow witness intervention as of right based

merely on a credibility ruling by a trial court. The interest invoked as a predicate

for intervention must “relat[e] to the property or transaction that is the subject of

the action.” This means the interest must directly relate to matters going to the

19


underlying claim(s). Brennan, 260 F.3d at 129 (“An interest that is remote from

the subject matter of the proceeding…will not satisfy the rule.”). The reputational

injury allegedly suffered by non-party witnesses from a finding that their testimony

was not credible did not directly relate to the substance or merits of the Floyd

plaintiffs’ Fourth Amendment and Equal Protection Clause causes of action. It

related only to the trial court’s process for resolving those claims.

The very same persons whom the Unions say should be entitled to

intervene as of right are persons who already had the opportunity to convince the

trier-of-fact of their credibility when it mattered most, i.e., when they actually

testified. Moreover, this Court has held it is “not allowed to second-guess [a]

bench-trial court’s credibility assessments.” Krist v. Kolombus Rest. Inc., 688 F.3d

89, 95 (2d Cir. 2012); accord: Hofmann v. Sender, 716 F.3d 282, 292 (2d Cir.

2013) (“Decisions relating to the credibility of witnesses and the relative weight of

their testimony are properly left to the discretion of the trier of fact.”); see also

Fed. R. Civ. P. 52(a)(6). Thus, a finding that testimony of a witness was incredible

is essentially immune from reversal by this Court. Thus, not only is the

reputational interest asserted here not directly related to property or a transaction

which is a subject of the Floyd action, it is not substantial and legally protectable

on an appeal.

20


The District Court found that, over several years, the NYPD, which at

any one relevant point in time was composed of at least 25,000 people, conducted

more than 200,000 unconstitutional stop-and-frisks. The Unions say this sullied

the reputations of each and every member of the NYPD and, hence, each would

have the right to intervene under Rule 24(a)(2). This confuses individual members

of the NYPD with the NYPD itself. It would be one thing to argue that the

findings of unconstitutional conduct by the NYPD undermined the reputation of

the NYPD. However, presumably aware that the NYPD’s reputation is an interest

belonging to the NYPD and not to the Unions or their members and that, therefore,

the Unions cannot rely on an injury to the NYPD’s reputation as a predicate for

Union intervention, the Unions do not go down that road. What they are left with

is an argument to the effect that although the trial court found only that the NYPD

was liable for the commission of the aforesaid stop-and-frisks and did not identify

any individual police officer as having perpetrated an unconstitutional stop-and-

frisk, nevertheless the trial court’s finding injured the reputation of each and every

police officer and, thus, every individual officer might intervene as of right.

In evaluating this argument, it is helpful to consider the following

hypothetical: Suppose instead of appearing in a judicial opinion, the same findings

of widespread unconstitutional stop-and-frisks appeared, in precisely the same

words, in a newspaper article. Could the author of the article and/or the

21


newspaper’s publisher be liable in a defamation suit brought by an individual

NYPD officer based upon such an article? The answer is plainly ‘no.’ See

Abramson v. Pataki, 278 F.3d 93, 102-103 (2d Cir. 2002). In affirming rejection

of a claim of defamation by individual workers at the Javits Center, this Court

stated in Abramson: “[W]hile there were repeated references to corruption among

Javits Center workers, none of the individual appellants was directly or impliedly

identified. The appellants have therefore clearly failed to demonstrate the essential

element of specific reference.” Id. Accord: Gilmer v. Spitzer, 538 Fed. Appx. 45,

47 (2d Cir. 2013) (“Spitzer refers to ‘Marsh’ as a company. Such a broad

reference to an organization cannot give rise to a defamation claim by one of its

constituents.”)

The larger the number of persons within an organization, the more

difficult it is to show specific reference to an individual based only on a reference

to the organization. There do not appear to be any cases under New York law

where individuals belonging to a group with a membership greater than 60 persons

have been permitted to go forward with a libel claim based upon a criticism of the

group. See Diaz v. NBC Universal, Inc., 536 F. Supp. 2d 337 (S.D.N.Y. 2008), and

Anyanwu v. CBS, Inc., 887 F. Supp. 690, 692-693 (S.D.N.Y. 1995) (both citing

cases). That there were at least 25,000 persons who, in the years at issue in Floyd,

worked for the NYPD establishes beyond peradventure that any individual

22


officer’s defamation claim predicated only on the findings against the NYPD (in a

newspaper article) would fail. For the same reasons, no individual officer can

claim a direct impairment to his individual reputation based upon the District

Court’s findings of unconstitutional conduct by the NYPD. In the language of

defamation cases, a statement is not “of and concerning” an individual when it

does no more than reference an organization to which the individual belongs. And

a statement which merely concerns an organization does not create a direct,

substantial and legally protectable reputational interest on the part of an individual

belonging to that organization.

D. The Putative Intervenors Failed To Show A Sufficient Interest Based Upon Their Safety Rationale. .

The Police Unions contend the District Court’s remedial orders

require conduct that will undermine “safety.” They argue that this serves to create

an interest within the meaning of Rule 24(a)(2) entitling them to intervene as of

right. As the District Court found, the “safety” rationale was proffered without

specific evidentiary support. This alone forecloses an argument that the District

Court’s rejection of the “safety” rationale as a basis for intervention was an abuse

of discretion. A motion for leave to intervene is no different in relevant respect

from a motion for a preliminary injunction, a motion for class certification, a

motion to disqualify opposing counsel or a motion to exclude the testimony of an

23


expert witness. A Rule 24(a)(2) motion, like each of these other motions, cannot

succeed simply on the basis of conclusory allegations; it must be supported by

specific evidentiary facts. Thus a movant cannot satisfy the interest criterion in

Rule 24(a)(2) simply by crying “safety.” It must support such a conclusory

assertion with specifics. As the District Court found, the Unions failed to do this,

and it follows that the Court did not abuse its discretion in denying intervention

under Rule 24(a)(2) on this basis, among others.

While this by itself is sufficient to dispose of the Unions’ appeals

from the denial of Rule 24(a)(2) intervention premised on the claimed “safety”

interest, we believe it is important to examine this allegation further. The Unions

do not make clear whether they mean to refer only to the safety of the public

subjected to stop-and-frisks or also to the safety of police officers conducting stop-

and-frisks. Insofar as it is the former, it would suffice to note Appellants could not

be heard to raise a “public safety” rationale, even if they purported to provide

specifics. This is because the safety of the New York City public is, legally

speaking, the City’s concern, not that of the Unions or their members. Thus it

would not qualify as a direct interest on the Unions’ motions to intervene nor

would the Unions have standing to advance that rationale. See pages 16-17 supra.

More importantly and with all respect, any assertion that the safety of

the public would be threatened by the measures put in place by the District Court

24


to end unconstitutional invasions of the privacy, liberty and dignity of those who

walk or drive in New York City, particularly the millions of minority persons who

are part of the fabric of New York City,7 truly would be “a fantastic absurdity.”

District of Columbia v. Little, 178 F.3d 13, 17 (D.C. Cir. 1949) (Prettyman, J.),

aff’d, 339 U.S. 1 (1950). It is the unconstitutional conduct of the NYPD over

many years in respect to hundreds of thousands of New Yorkers, as found by the

District Court, which threatens the safety of the public. Further, any contention

that the safety of the public demands a freedom to conduct stops without

reasonable suspicion (including a freedom to conduct stops on the basis of race or

color) or a freedom to conduct full-blown search upon stops instead of pat-downs

cannot be heard in this Court. That is because such a contention is not a challenge

to the rulings of the District Court in this case but rather is an assault upon the

ruling of the Supreme Court in Terry v. Ohio.

In that case the Court, expressly taking into account the interest of the

public in “effective crime prevention and detection,” id. at 22, and the interests of

individual police officers in their own safety, id. at 23-24, nevertheless held that a

7 In Terry v. Ohio, the Supreme Court held that the stopping of a person to investigate possible unlawful conduct “is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment…” 392 U.S. 1, 17 (1968). “Even a limited search of the outer clothing for weapons constitutes a severe, though brief, intrusion upon cherished personal security, and it must surely be an annoying, frightening, and perhaps humiliating experience.” Id. at 24-25.

25


police officer may not stop a person ostensibly to investigate possible criminal

behavior in the absence of specific and articulable reasonable suspicion of past,

current or imminent unlawful behavior and may then conduct a patdown of the

person, rather than a full-blown search, to insure the person is not armed with a

weapon that might be used against the officer. In other words, in formulating the

rule that has governed police conduct since 1968 and that governed the police

conduct at issue in this case, the Supreme Court has already taken into account

both the safety of the public and the safety of the officer. The Unions cannot be

heard to argue here that either public or police safety demands a redrawing of the

constitutional and safety considerations which the Supreme Court balanced in

Terry.

A specific word about the pilot program regarding cameras to be worn

by officers under the District Court’s order is warranted. Rather than threatening

either the safety of the public or the safety of the police, such cameras will increase

the safety of both. They will discourage unlawful stop-and-frisks. And they will

discourage unlawful conduct by the public against, or otherwise in the presence of,

police officers. This is why Commissioner Bratton, no novice to police work in

the real world, stated that such a camera “is going to be an essential part of what an

officer wants to wear on patrol.” Op. cit. (Emphasis added). The views of NYC

police officers who are members of the organizations filing this amicus brief are in

26


accord with the Commissioner’s judgment. Based upon their substantial

experience, the wearing of cameras by officers will be a win for the safety of

officers as well as a win for the safety of the public.

In a September 28, 2014 front-page article, the New York Times

noted: “In just the last few weeks, law enforcement agencies in at least a dozen

cities…have said they are equipping officers with video cameras.” After surveying

63 police departments, the U.S. Justice Department was said to have concluded

that this technology “ha[s] the potential to ‘promote the perceived legitimacy and

sense of procedural justice’ in interactions between the public and law

enforcement.” A Pullman, Washington police officer with ten years experience

observed that a camera producing

a video record felt to her almost like another level of protection, a kind of flak jacket of evidence about what happened, even if it was nothing much. “I get nervous when I think it’s not on,” she said of her camera. “I know its going to document what the truth is, and I want the truth out there.”

Kirk Johnson, “Today’s Police Put On a Gun And a Camera,” N.Y. Times, pp. 1,

24.

E. The Unions May Not Intervene To Challenge The Liability Findings Of The District Court. .

In addition to directly challenging the remedies imposed by the

District Court, the Unions expend considerable effort seeking to challenge its

27


liability findings. We have already shown that the findings that the NYPD

conducted unconstitutional stop-and-frisks do not directly or substantially

implicate the reputational interests of any individual police officers, because the

Court did not identify or otherwise refer to any individual officer as having

engaged in unconstitutional conduct. Additionally, neither the purported statutory

duty of New York City to bargain over the remedies ordered by the Court, the

supposed undue interference with the City’s running of the NYPD occasioned by

those remedies, the reputational interests of individual police officers said to arise

from the determinations that their testimony was not credible, nor the safety

rationale they advance are directly implicated by those findings. Accordingly,

there is no basis in this Court’s precedents construing Rule 24(a)(2) which would

allow the Unions to intervene in order to challenge the liability findings of the

District Court.

28


CONCLUSION

For the foregoing reasons among others, the judgment of the District

Court denying intervention should be affirmed.

Dated: September 2!I , 2014

Respectfully submitted,

GLADSTEIN, REIF & MEGINNISS, LLP

By: ~"f#i James Re1f(J 297 4)

817 Broadway, 6th Floor New York, New York 10003 (212) 228-7727 [email protected])

Attorneys for Amici Curiae

29


CERTIFICATE OF COMPLIANCE

Pursuant to Rule 32(a)(7)(C) of the Federal Rules of Appellate

Procedure, the foregoing brief is in 14 Point Times New Roman proportional font

and contains six thousand nine hundred seventy (6,970) words according to the

word count of the word-processing system used to prepare the brief and thus is in

compliance with the type-volume limitation set forth in Rules 29( d) and

32(a)(7)(B)(i) of the Federal Rules of Appellate Procedure.

Dated: September 21 , 2014

Attorney for Amici Curiae


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